Dear PAO,

I am a police officer assigned at our station’s drug enforcement unit. In order to help curtail the continued proliferation of illegal drugs in our area of responsibility, our chief of police ordered us to plan an entrapment operation. Are there any guidelines to ensure that our entrapment operation is valid and within the bounds of the law?

Nixon

Dear Nixon,

The Supreme Court adopted both the subjective and objective tests to determine the validity of an entrapment operation. In People vs. Doria, G.R. No. 125299, January 22, 1999, penned by Chief Justice Reynato S. Puno, the Court explained these parameters, thus:

“xxx Initially, an accused has the burden of providing sufficient evidence that the government induced him to commit the offense. Once established, the burden shifts to the government to show otherwise. When entrapment is raised as a defense, American federal courts and a majority of state courts use the ‘subjective’ or ‘origin of intent’ test laid down in Sorrells v. United States to determine whether entrapment actually occurred. The focus of the inquiry is on the accused’s predisposition to commit the offense charged, his state of mind and inclination before his initial exposure to government agents. All relevant facts such as the accused’s mental and character traits, his past offenses, activities, his eagerness in committing the crime, his reputation, etc., are considered to assess his state of mind before the crime. The predisposition test emphasizes the accused’s propensity to commit the offense rather than the officer’s misconduct and reflects an attempt to draw a line between a ‘trap for the unwary innocent and the trap for the unwary criminal.’ If the accused was found to have been ready and willing to commit the offense at any favorable opportunity, the entrapment defense will fail even if a police agent used an unduly persuasive inducement. Some States, however, have adopted the ‘objective’ test. This test was first authoritatively laid down in the case of Grossman v. State rendered by the Supreme Court of Alaska. Several other states have subsequently adopted the test by judicial pronouncement or legislation. Here, the court considers the nature of the police activity involved and the propriety of police conduct. The inquiry is focused on the inducements used by government agents, on police conduct, not on the accused and his predisposition to commit the crime. For the goal of the defense is to deter unlawful police conduct. The test of entrapment is whether the conduct of the law enforcement agent was likely to induce a normally law-abiding person, other than one who is ready and willing, to commit the offense; for purposes of this test, it is presumed that a law-abiding person would normally resist the temptation to commit a crime that is presented by the simple opportunity to act unlawfully. xxx

“It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation or inducement in Philippine jurisprudence. Entrapment in the Philippines is not a defense available to the accused. It is instigation that is a defense and is considered an absolutory cause. To determine whether there is an entrapment or instigation, our courts have mainly examined the conduct of the apprehending officers, not the predisposition of the accused to commit the crime. The ‘objective’ test first applied in United States v. Phelps has been followed in a series of similar cases. Nevertheless, adopting the ‘objective’ approach has not precluded us from likewise applying the ‘subjective’ test. In People v. Boholst, we applied both tests by examining the conduct of the police officers in a buy-bust operation and admitting evidence of the accused’s membership with the notorious and dreaded Sigue-Sigue Sputnik Gang. We also considered accused’s previous his convictions of other crimes and held that his opprobrious past and membership with the dreaded gang strengthened the state’s evidence against him. Conversely, the evidence that the accused did not sell or smoke marijuana and did not have any criminal record was likewise admitted in People v. Yutuc thereby sustaining his defense that led to his acquittal.”

Guided by these principles, you must apply both the subjective and the objective tests, as described above, in order to validly conduct an entrapment operation in your area of responsibility. Care should be taken to avoid employing instigation, instead of entrapment; as the former is illegal and amounts to luring an otherwise innocent person, who had no intention of committing a crime, into committing one to prosecute him.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]